Schlozman Walks

Attorney General Eric H. Holder Jr. has decided not to bring criminal charges against a former Bush administration official who lawmakers said lied to them in sworn testimony. An inspector general’s report found that the official, Bradley Schlozman, the former head of the civil rights division of the Justice Department, had misled lawmakers about whether he politicized hiring decisions. Senator Charles E. Schumer, Democrat of New York, called the decision “very disappointing,” adding, “Perjury is often a close call, but in this case it wasn’t.”

Schlozman served in a number of senior offices at the Justice Department, including within the Civil Rights Division and as U.S. Attorney in Kansas City. He left the Department under a cloud in 2007 at the height of the U.S. attorneys scandal, and he now practices law in Kansas City with the firm of Hinkle Elkouri. Schlozman is directly connected with a campaign to vet Justice Department staffers for ideological purity in violation of the Hatch Act, talking in emails about hiring “right-thinking Americans” and “comrades” while ridding the Civil Rights Division of “pinkos,” “commies,” and individuals who actually believed in enforcing the nation’s civil rights laws. He also clearly pushed the U.S. attorney in Kansas City to bring a series of politically-motivated legal actions, including a bogus prosecution of a Democratic candidate for mayor of Kansas City. When the sitting U.S. attorney began to balk at some of Schlozman’s more cockeyed political shenanigans, Schlozman pressured him out of office and assumed the post himself. Much of this conduct could easily have justified a criminal investigation and prosecution on its own, but the investigation that Holder just wrapped up had to do with something else—Schlozman’s appearances before Congress.

The evidence in our investigation showed that Schlozman, first as a Deputy Assistant Attorney General and subsequently as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General, considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division. In doing so, he violated federal law – the Civil Service Reform Act – and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct. The evidence also showed that Division managers failed to exercise sufficient oversight to ensure that Schlozman did not engage in inappropriate hiring and personnel practices.

Moreover, Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee and in his written responses to supplemental questions from the Committee. Schlozman is no longer employed by the Department and, therefore, is not subject to disciplinary action by the Department. We recommend, however, that, if criminal prosecution is declined these findings be considered if Schlozman seeks federal employment in the future. We believe that his violations of the merit system principles set forth in the Civil Service Reform Act, federal regulations, and Department policy, and his subsequent false statements to Congress render him unsuitable for federal service.

A review of the specifics leaves little basis to doubt the inspector general’s conclusions, which if anything are generous to Schlozman. He made repeated false statements, and there is little basis to conclude his falsehoods stem from faulty memory or mistake. In other words, just as Senator Schumer notes, this was not a borderline case.

So why has Holder decided to take no action, and what message does it send? Schlozman’s conduct was a clear violation of law, and he could easily have been prosecuted for it. A straight prosecutorial decision would clearly have gone in that direction. Here we see Holder exercising political discretion to avoid a fight with movement conservatives. But at what cost? Holder’s office insists that the decision not to prosecute should not be seen as condoning Schlozman’s conduct, but of course it will be viewed just that way. Holder’s conclusion is that Schlozman’s political gamesmanship, including hiring and firing in violation of federal law and lying to Congress, is just the way politics is played in Washington. It therefore sets the stage for current Justice Department employees to behave in a similar fashion.

It also contributes to the emerging perception of a double standard. If a white-collar figure had engaged in this sort of dissembling before a Grand Jury or in the course of an FBI interview, he would find himself facing charges. It wouldn’t even be a close call. Holder is telling us that prosecutors in the Justice Department will be held to a distinctly lower standard of conduct than that expected of the citizenry as a whole. This decision won’t improve the Department’s already seriously damaged reputation.

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Photograph by Adam Golfer

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